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2d 113
While that appeal was pending, Duhart's assigned counsel brought a second
petition to test, under 2255, the validity of the 1955 conviction underlying the
allegedly illegal sentence which was the target of the first petition and to test,
under the All-Writs Act, 28 U.S. C.A. 1651(a), a 1949 conviction which was
one of the bases for Duhart's 1955 sentence as a third narcotics offender. This
petition was also dismissed. Leave to appeal in forma pauperis was granted by
this court and the two appeals were consolidated for hearing.
We shall consider first the attacks upon the two convictions, since each is a
basis for the 1955 sentence. At the outset, however, it must once again be stated
that proceedings by way of 28 U.S.C.A. 2255 or 1651(a) may not be used to
correct errors which occurred during the course of the trial. United States v.
Angelet, 2 Cir., 255 F.2d 383. Even alleged constitutional deprivations, if they
did not infect the validity of the convictions now under attack, are irrelevant for
purposes of these proceedings. We are forced to restate these elementary
principles in order to define the target which is somewhat obscured by the
smoke of the scattergun technique employed by appellant's counsel.
Essentially, Duhart seeks to widen the scope of attack upon these convictions to
include pre-conviction errors by allegations that he was ineffectively
represented by counsel, both in 1949 and 1955. We note, as did Judge Ryan,
that no affidavit in support of this motion was made by Duhart himself. Three
affidavits were submitted: the first, by a co-defendant in 1949, who at that time
pleaded guilty to the charge, but now protests her innocence; the second, by a
friend, is of no probative value; and the third, by Duhart's present counsel, is
obviously not based upon any personal knowledge of the facts. Duhart pleaded
guilty to the 1949 charge. It is argued that he would have been acquitted, if
advised to stand trial and given competent representation, because (1) the 1949
indictment charged possession of narcotics only, which is not a crime; (2) no
narcotics were in fact found in his possession, the chemist's analysis showing
the substance in question was Epsom Salts; and (3) in any case, the evidence
was secured through an illegal search and seizure and should have been
suppressed.
Nor is the 1955 conviction, after trial, subject to any greater vulnerability.
Throughout that trial, Duhart was represented by a highly experienced member
of the New York Bar, a lawyer of his own choosing. Duhart now maintains that
another line of defense might have resulted in a judgment of acquittal. But even
now, with the aid of hindsight, it is far from clear that the strategy now
suggested would have been successful. And certainly, trial strategy, even if it
proves unsuccessful, is inadequate basis for an attack on the competence of
counsel. See United States v. Wight, 2 Cir., 176 F.2d 376, certiorari denied 338
U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586; Kyle v. United States, 2 Cir., 266 F.2d
670. We hold that there is no basis for the charge of inadequate representation
during the 1955 trial.
Since each conviction must be upheld, we come to consider the claim of error
raised by Duhart's first petition, relating to the sentencing. Both Duhart and his
lawyer admitted several times during the course of the trial that he had two
prior convictions for narcotics violations. At the end of the trial, Judge Ryan
found Duhart guilty and on August 4, 1955 imposed the minimum mandatory
sentence of ten years for third offenders set forth in the statute. 21 U.S.C.A.
174. On the following day, it was discovered that no information had been
filed, as required by 26 U.S.C.A. 7237(c) (2). A second sentencing hearing
was immediately held and Judge Ryan revoked the August 4th sentence.
Thereupon an information was filed, and on August 5, 1955 the defendant was
resentenced to the same minimum mandatory term, with the same
recommendation that parole should be granted at the earliest eligibility date.
On this appeal, Duhart maintains that the first sentence, on August 4, 1955, was
illegal, absent the information. He also argues that the District Court had no
power to conduct the August 5 proceedings and that the resentencing exposed
him to double jeopardy. Acceptance of these arguments would mean that the
failure to file an information would prevent any sentencing at all, after a fair
trial and a valid conviction. The law does not countenance such a bizarre result.
In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149. In Bozza v. United
States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818, the judgment was corrected to
bring the sentence into conformity with the mandatory minimum prescribed by
statute.
We hold that the sentence of August 4 was not invalid for lack of the statutory
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It is accordingly ordered that the order of January 29, 1959, Docket No. 25670,
be affirmed, and that the order of May 23, 1958, Docket No. 25217, be in part
affirmed and in part be reversed and remanded with a direction to vacate the
August 5th sentence and to reinstate the August 4th sentence.
Notes:
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